C.A. Balakrishnan v Commissioner, Corporation of Madras (2003)

Order II Rule 2 is usually taught as a bar between one suit and another. This decision carries the rule across into writ jurisdiction and states the reasoning in a single sentence worth memorising: if a second suit would be barred, a writ petition for the same relief on the same cause of action is equally barred, because the public policy underlying Order II Rule 2 applies with equal vigour.

It is therefore the natural companion to State of U.P. v Nawab Hussain. That case takes constructive res judicata from suits into writ proceedings; this one takes Order II Rule 2 in the same direction.

The petitioner ran the Udipi Canteen in the Rippon Building compound in Madras, in premises of about 1,839 square feet. He claimed to be a lessee of the Corporation at a monthly rent of Rs 766.25, fixed by a resolution of 16 December 1993 in modification of an earlier rent of Rs 200 fixed in 1989. Arrears computed at the revised rate had been demanded and paid in two instalments. The canteen had been run first by one Seetharama Uduppa, then by the petitioner's father, and then by the petitioner for about sixteen years, serving the employees in the building. He had obtained a no-objection certificate from the District Revenue Officer for a police licence and a certificate from the Labour Officer to engage up to twenty workers.

On 25 May 1995, at about 12.30 p.m., the Junior Engineer of the Corporation is said to have come to the canteen without notice or warning, ordered the workers and customers out, and locked and sealed the premises with stock inside. The petitioner issued a lawyer's notice on 27 May 1995 demanding restoration of possession and damages.

The Corporation's answer was that the canteen had been inspected on 15 May 1995 and found defective in six respects — no white wash; no residual chlorine in the drinking water; inadequate drainage with sewage overflowing in front of the canteen; no food handlers' certificates from the Medical Officer; no boiling of water or sterilisation; and the canteen and the entire place kept in an unhygienic condition. A notice under s. 379-A of the Madras City Municipal Corporation Act was issued to the licensee, refused, and served by affixture; the defects not having been rectified, the premises were sealed.

Because the High Court was on vacation, the petitioner had first gone to the civil court. He filed O.S. No. 3743 of 1995 in the City Civil Court for a mandatory injunction and restoration of possession, with three interlocutory applications: for removal of the lock, restoration of electricity and handing back of possession; for the appointment of an Advocate Commissioner to take an inventory; and for an injunction restraining interference with his possession and enjoyment. The interlocutory applications were dismissed, save that on 10 July 1995 the court ordered the delivery of the movables without ordering restoration of possession. The suit was later decreed ex parte.

He then filed this writ petition under Art. 226 for a mandamus to restore possession and for exemplary costs and damages at Rs 500 a day from 25 May 1995 until restoration.

Having sued in a competent civil court on the same cause of action, and having obtained only part of the relief he sought, could the petitioner invoke the writ jurisdiction of the High Court for the remaining relief?

No. The writ petition was dismissed as hit by Order II Rule 2 of the Code.

What Order II Rule 2 requires. The court restates the rule in three parts: the suit shall include the whole claim; relinquishment of part of the claim is not permitted; and omission to sue for one of several reliefs is prohibited. Once a suit has been filed for certain relief in respect of a cause of action, the plaintiff is precluded from instituting another suit for other reliefs in respect of the same cause of action.

The step across to Art. 226. From that the court draws the conclusion that the same person cannot be allowed to invoke the writ jurisdiction to obtain the very same reliefs. If a second suit is barred, a writ petition would equally be barred; the public policy underlying Order II Rule 2 is attracted with equal vigour.

The support from the Supreme Court. The judgment relies on Devilal Modi v Sales Tax Officer, Ratlam (1965) for the proposition that considerations of public policy and the principle of the finality of judgments are important constituents of the rule of law and cannot be violated merely because a citizen contends that his fundamental rights have been contravened and wants liberty to agitate the validity of an order by filing one writ petition after another. If constructive res judicata were not applied to such proceedings, a party could file as many writ petitions as he liked, taking one or two points each time — which is opposed to the very considerations on which res judicata rests and would mean harassment of the opponent and damage to the finality of judgments.

The High Court authority. The court follows the Division Bench of the Andhra Pradesh High Court in K. Madhadeva Sastry v Director, Post Graduate Centre, Anantapur (1982), which had already applied Order II Rule 2 to writ proceedings in these terms, and had noted that the applicability of res judicata to writ proceedings began to be worked out from Daryao v State of U.P. (1961) and was clarified in Devilal Modi.

Use it wherever a problem gives you a litigant who has already been to the civil court on the same facts. The chain is short and should be reproduced in that order: Order II Rule 2 requires the whole claim in one suit; a second suit for an omitted relief on the same cause of action is barred; the same public policy bars a writ petition for the omitted relief; and the general doctrine of res judicata, including its constructive form, applies to writ proceedings.

Distinguish carefully between the two provisions when you cite them. Order II Rule 2 is about reliefs omitted from a suit on one cause of action. Explanation IV to s. 11 is about grounds of attack or defence which might and ought to have been taken. Problems often contain one and not the other.

The bar operates although the petitioner had in fact succeeded in the civil suit, which was decreed ex parte. The vice is not that he lost, but that he split his claim: he asked the civil court for restoration of possession, obtained only the movables, and then asked a second forum for the rest.